Amicus Curiae Brief — Zant v. Moore

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No. 87-1104 |

4 | JUN 17 1998

= & SPANIOL,

IN THE enmenenees ee Ew

SUPREME COURT OF THE UNITED STATES

October TERM, 1987

WALTER ZANT, Warden,

Petitioner,

VS.

WILLIAM Neat Moorse,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

BRIEF AMICUS CURIAE OF

THE CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

Kent S. SCHEIDEGGER*

CHARLES L. Hopson

Criminal Justice Legal

Foundation

428 J Street, Suite 310

P.O. Box 1199

Sacramento, California 95812

Telephone: (916) 446-0345

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

“Attorney of Record

"

TABLE OF CONTENTS

Table of authorities .........0-.000-0 eee ii

OUD gcc ccc cece sesceess 1

PSS ee ee ae ee 2

GEE Kaede ee cte ser voceveveeve ves 2

A

Habeas corpus as an instrument of collateral attack is at

best a distant relative of the historical “Great Writ” . 2

B

This Court should adopt the Engle/Reed “tools to

construct the claim” test for evaluating “new law”

claims in successive habeas petitions .......... 6

1. Fay v. Noia and Sanders v. United States ..... 7

2. The Cause and Prejudice Test ........... 8

Ss - 4 rere T rere r ees 12

4. Successive Federal Petitions ............ 13

ee ee ee 16

o

Only genuinely new rules are sufficiently novel to qualify

ND 6b oil a ee. 4 5 ee wee 17

D

This Court has adopted two different methods for

determining retroactivity ofnewrules ......... 20

1. The rise of nonretroactivity: Linkletter-Stovall .21

sits

re eee 22

E.

If Estelle v. Smith is retroactive, a claim under it is

necessarily not sufficiently novel to qualify under

ENGNG ow ccc ctenee eee 24

1. Analysis Under Linkletter-Stovall ......... 24

2. Analysis Under the Harlan-Powell approach . . 28

F.

There has been no fundamental miscarriage of justice . 29

Comemmenem www wc tee ee ee eee 29

- lil -

TABLE OF AUTHORITIES

Cases

Allen v. Hardy, 478 U.S. 255 (1986) ............ 24

Amadeo v. Zant, 56 U.S.L.W. 4460 (May 31, 1988) .16, 17

Barefoot v. Estelle, 463 U.S. 880 (1983) .......... 15

Batson v. Kentucky, 476 U.S. 79 (1986) .......... 24

Battie v. Estelle, 655 F.2d 692 (Sth Cir. 1981) . 25, 26, 28

Brown v. Allen, 344 U.S. 443 (1953) ............ 5

Bushell’s Case, 124 Eng.Rep. 1006(1670) ........ 3

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971) ...... 26

Davis v. Unites States, 411 U.S. 233 (1973) ....... 8,9

Desist v. United States, 394 U.S. 244

ED ES eee 19, 22, 23, 25

Engle v. Isaac, 456 U.S. 107 (1982) ........ 7, 17, 18

Estelle v. Smith, 451 U.S. 454(1981) ......... 25, 27

Ex parte Lange, 85 U.S. (18 Wall.) 163 (1873) ...... 4

Ex parte Watkins, 28 U.S. (3 Pet.) 193 (1830) ...... 4

Ex parte Wilson, 114 U.S. 417 (1885) ........... 4

Ex parte Siebold, 100 U.S. 371 (1879) ........... 4

Fay v. Noia, 372 U.S. 391 (1963) ............ 7, 19

Francis v. Henderson, 425 U.S. 536 (1976) ...... 9,11

-iv-

Frank v. Magnum, 237 U.S. 309(1915) ........... 5

Gardner v. Florida, 430 U.S. 349 (1977) ......... 27

Gideon v. Wainwright, 372 U.S. 335 (1963) ....... 21

Griffith v. Kentucky, U.S. , 93 L.Ed.2d 649,

PE PEED Sb ek oe ha mee OV aR OS 8 8 20

Hankerson v. North Carolina, 432 U.S. 233 (1977) .. .23

Herb v. Pitcairn, 324 U.S. 117(1945) ........... 10

ee St rere ere 4

of eer re 27

In re Winship, 397 U.S. 358 (1970) ............ 18

Johnson v. New Jersey, 384 U.S. 719 (1966) . . .21,22, 25

Linkletter v. Walker, 381 U.S.618 (1965) ........ 21

Mackey v. United States, 401 U.S. 667

oo eee er ergs a ea ee 14, 23, 24, 28

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) .. . 22

Matter of Moran, 203 U.S. 96 (1906) ............5

Mays v. Balkcom, 631 F.2d 52 (Sth Cir. 1980) ....... 6

Miranda v. Arizona, 384 U.S. 436 (1966) ....... 22, 23

Moore v. Blackburn, 774 F.2d 97 (Sth Cir. 1985)

cert. denied 92 L.Ed.2d 776, 106 S.Ct. 2904 ....... 6

Moore v. Dempsey, 261 U.S. 86 (1923) ..........5

Moore v. Georgia, 428 U.S.910 (1976) .......... 28

-V-

Moore v. Kemp, 824 F.2d 847

oR a ee 6, 7, 20, 27

Murray v. Carrier, 477 U.S. 478 (1986) ..... 13, 16, 29

Norton v. Sheiby County, 118 U.S. 425 (1886) ...... 21

Palko v. Connecticut, 302 U.S. 319 (1937) ........ 28

Reed v. Ross, 468 U.S. 1(1984) ........... Passim

Sanders v. United States,373 US.1 .......... 7,8

Satterwhite v. Texas, 56 U.S.L.W. 4470

ie nk Boe A Sw a ee 25

Smith v. Murray, 477 U.S. 527 (1986) ......... 27, 29

Solem v. Stumes, 465 U.S. 638 (1984) ......... 25, 26

Strickland v. Washington, 466 U.S. 668 (1984) ...... 6

Stone v. Powell, 428 U.S. 465 (1976) ............ 5

Stovall v. Denno, 388 U.S. 293 (1967) ......... 21, 25

Tehan v. Shott, 382 U.S. 406 (1966) ............ 25

Townsend v. Sain, 372 U.S. 293 (1963) .......... 8

United States v. Frady, 456 U.S. 152(1982) ..... 11, 12

United States v. Johnson, 457 U.S. 537 (1982) ...... 19

Wainwright v. Sykes, 433 U.S. 72 (1977) ....... 9, 10

Whisman v. Georgia, 384 U.S. 895 (1966) ........ 22

Constitutions

eo ea oe et a ee ee cs 3

Statutes

en °c) se a a eae hla ae 0.4 eek a le 7

Judiciary Act § 14, 1 Stat. 81 (1709)... 2.2.2 2 ee ee 4

St aa an i eral 1 a Oe 16

Court Rules

Federal Rule of Criminal Procedure 12(b)(2) ...... )

Rules Governing Section 2254 Cases, Rule 9(b) ... . 16

Treatises

L. Tribe, American Constitutional Law § 16.2

Ee ee ee

W. Blackstone, Commentaries (1768) ........ .3,21

W. La Fave and A Scott, Criminal Law (1972)... ... 18

Wright, Habeas Corpus: Its History and Its Future

(Book Review), 81 Mich.L.Rev. 802 (1983) ....... 6

Miscellaneous

Bator, Finality in Criminal Law and Federal Habeas

Corpus for State Prisoners, 76 Harv.L.Rev. 441

PD aos 6 4d W6 baa e ee eee eee « 4,5

Friendly, /s Innocence Irrelevant? Collateral Attack on

Criminal Judgments, 38 U.Chi.L.Rev. 142 (1970) . . 3,5

H.R.Rep.No. 94-1471, reprinted in 1976 U.S. Code

Cong. & Admin. News 2478 ............. 16, 17

No. 87-1104

In THE

SUPREME COURT OF THE UNITED STATES

OcrosBer TERM, 1987

Wa ter ZANT, Warden,

Petitioner,

VS.

WILLIAM Neat Moore,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

BRIEF AMICUS CURIAE OF

THE CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects

the public interest. CJLF seeks to bring the due process

protection of the accused into balance with the rights of the

victim and of society to rapid, efficient and reliable deter-

mination of guilt and swift execution of punishment.

a.

The present case involves the extended relitigation of the

legality of a proceeding conducted many years ago, in which

respondent admitted committing a capital offense. Such

unnecessary relitigation is contrary to the rights of victims

and society which CJLF was formed to advance.

SUMMARY OF ARGUMENT

The expansion of habeas corpus as an instrument of col-

lateral attack is a creation of this Court, and the writ can be

retracted by this Court without impairing in any way the

historical writ guaranteed by the Constitution.

The considerations underlying Wainwright v. Sykes

regarding state procedural bars apply with equal force to

failure to raise an issue on the first federal petition. The

cause and prejudice test should be adopted. A claim that

a change in the law constitutes cause under that test is in-

herently inconsistent with the contention that the change

is retroactive on habeas corpus. In the present case, this in-

consistency exists under either of the two views of retroac-

tivity.

ARGUMENT

A. Habeas corpus as an instrument of collateral attack

is at best a distant relative of the historical

“Great Writ.”

Suggesting that habeas corpus be limited, as we will

below, invariably produces a vehement reaction. “Any

murmur of dissatisfaction with [collateral attack on convic-

tions] provokes immediate incantation of the Great Writ,

with the inevitable initial capitals, often accompanied by a

suggestion that the objector is the sort of person who would

x

cheerfully desecrate the Ark of the Covenant.” Friendly,

Is Innocence Irrelevant? Collateral Attack on Criminal Judg-

ments, 38 U.Chi.L.Rev. 142, 142 (1970). Before turning to

the particular question at hand, then, it may be best to note

a frequently overlooked aspect of the writ. Habeas corpus

as we know it is vastly different from the procedure on

which Blackstone heaped his famous praise. See 3 W.

Blackstone, Commentaries 129-138 (1768). The historical

writ of habeas corpus ad subjiciendum was solely a remedy

for illegal detention and could not overturn a conviction of

a crime entered in a competent court. Today’s writ of col-

lateral attack, in contrast, nearly always questions a judg-

ment of a court of unquestioned jurisdiction.

The common law writ was usually issued to free a person

summarily imprisoned by the executive, although summary

judicial imprisonments were someiimes involved. See, e.g.,

Bushell’s Case, 124 Eng.Rep. 1006 (1670). A conviction by

a court of limited jurisdiction might be questioned as to

jurisdiction, but the writ was denied if the prisoner was in

custody for conviction of a crime by a court of competent

jurisdiction. See 3 Blackstone, supra, at 132 (piracy convic-

tion in admiralty unquestionable). The Great Writ was

simply unavailable for collateral attack on such a judg-

ment.

The writ was brought to America and incorporated in our

Constitution. U.S. Const. art. I § 9. The first Congress ex-

1 Bushell’s Case, supra, is not to the contrary. Bushell had not

been convicted of a crime. He was jailed for contempt. 124

Eng.Rep. at 1006.

ye

pressly granted the federal courts power to issue the writ.

Judiciary Act § 14, 1 Stat. 81 (1789). The common law

limitation remained, however. “An imprisonment under a

judgment cannot be unlawful, unless that judgment be an

absolute nullity; and it is not a nullity if the court has general

jurisdiction of the subject, although it should be er-

roneous.” Ex Parte Watkins, 28 U.S. (3 Pet.) 193, 202

(1830).

The limitation recognized in Watkins remained un-

changed and was generally understood to be in force in

1867. In that year, Congress extended the federal writ to

state prisoners detained in violation of federal law, but gave

no indication that it intended to change the Watkins rule.

Bator, Finality in Criminal Law and Federal Habeas Corpus

for State Prisoners, 76 Harv.L.Rev. 441, 474-77 (1963).

The development of habeas corpus as a device to

relitigate convictions of crime already decided by courts of

competent jurisdiction was entirely a judicial invention. It

began with the idea that the imposition of both fine and im-

prisonment, under a statute authorizing only one or the

other, was beyond the “jurisdiction” of the court. Ex parte

Lange, 85 U.S. (18 Wall.) 163, 176 (1873). It was further

expanded with the holding that a federal court has no juris-

diction to try an “infamous” crime without an indictment.

Ex parte Wilson, 114 U.S. 417, 429 (1885). The outer limit

of nineteenth century collateral attack was reached in Ex

parte Siebold, 100 U.S. 371 (1879). On the theory that an

unconstitutional statute is absolutely void, it was held that

the cconstitutionality of the statute creating the offense

could be reconsidered on habeas. /d. at 376-377. The rule

was still in force, though, that errors of procedure could not

be collaterally attacked, even if they rose to constitutional

stature. In re Belt, 159 U.S. 95 (1895) (validity of jury waiver

x}

statute); Matter of Moran 203 U.S. 96, 105 (1906) (alleged-

ly forced self-incrimination not “jurisdictional”).

Inquiry into procedural error was made available in the

twentieth century to meet an overriding need. Black defen-

dants were being wrongfully convicted due to infection of

the system by racial prejudice, and direct review by this

Court was insufficient to correct the injustices. See Friend-

ly, supra p. 3, at 154-55; Bator, supra p. 4, at S23. In Moore

v. Dempsey, 261 U.S. 86 (1923), the petitioners had been

convicted in a mob-dominated trial and the state corrective

process had made no serious inquiry into the due process

issue. Id. at 87-90; cf. Frank v. Magnum, 237 U.S. 309, 333-

336 (1915) (state court carefully considered question and

decided trial was not mob-dominated). Finally, in Brown

v. Allen, 344 U.S. 443 (1953), the court addressed the merits

of Black petitioners’ jury discrimination claims, with only

one Justice contending that the state court’s resolution of

the issue be accepted as final. Jd. at 545 (Jackson, J., con-

curring).

The point of this abbreviated history is that the use of

habeas corpus as a device to relitigate questions which were

or could have been raised in the original trial and appeal is

entirely a creation of this Court. The decision in Brown v.

Allen was not compelled by the common law, the Constitu-

tion, or Congress, but only by this Court’s need to deal with

an urgent sociolegal problem. As the problem fades, so

does the need for this massive intrusion on the finality of

State judgments. Bator, supra p. 4, at 523-24. Like the Con-

stitution itself, habeas corpus is not as an object of worship

to be mummified and preserved unchanged, but rather a

flexible doctrine which has been and can continue to be ex-

panded and contracted to meet the needs of a changing na-

tion. See Stone v. Powell, 428 U.S. 465, 482 (1976); see also

aks

Wright, Habeas Corpus: Its History and Its Future (Book

Review), 81 Mich.L.Rev. 802, 810 (1983).

B. This Court should adopt the Engle/Reed “tools to con-

struct the claim” test for evaluating “new law” claims in

successive habeas petitions.

The crux of this case is the standard to be applied by

federal district courts when a prisoner who has previously

been denied federal habeas relief files another petition

with a new ground based on a purported change in the law

since his first petition. While the law regarding state pro-

cedural defaults has developed since 1963, very little has

been said about successive petitions. This Court has not

had occasion to provide guidance, and the few lower court

cases have given the problem cursory treatment. See

Moore v. Blackburn, 774 F.2d 97, 98 (Sth Cir. 1985); Mays

v. Balkcom, 631 F.2d 52, 53 (Sth Cir. 1980).

The lack of guidance for lower courts is evident from the

split opinion below. The majority adopted a subjective test

based on the petitioner’s knowledge and conduct plus the

knowledge of his attorney which is imputed to him. Moore

v. Kemp, 824 F.2d 847, 851 (11th Cir. 1987). The majority

then declined to impute to the petitioner knowledge of the

availability of a claim unless failure to recognize the claim

would have fallen outside the range of competent repre-

sentation, borrowing the test of competence from Strick-

land v. Washington, 466 U.S. 668, 690 (1984). Moore, 824

F.2d at p. 854. Under the majority’s test, then, the state can

establish an abuse of the writ on a “new law” claim only by

establishing the same degree of ineffective assistance on

the first petition which, if it had occurred at trial, would en-

title the petitioner to the writ under Stricklana.

oe

Judge Tjoflat, in dissent, adopted a test from a different

line of cases. He found the situation more analogous to the

procedural default cases. “If the petitioner possessed the

ingredients of his claim (the facts and the law) but simply

neglected to bring it in his prior petition, a federal court,

pursuant to Rule 9(b), may decline to consider the claim.”

Moore, 824 F.2d at 862, n. 14. Cf. Engle v. Isaac, 456 U.S.

107, 133 (1982). Amicus submits that Judge Tjoflat is cor-

rect and that the majority is incorrect.

1. Fay v. Noia and Sanders v. United States.

The modern law of procedural default on habeas begins

wiih a pair of cases decided several weeks apart in 1963:

Fay v. Noia, 372 U.S. 391 and Sanders v. United States, 373

U.S. 1. Fay involved a claim of involuntary confession

which was barred on state collateral review due to Noia’s

failure to appeal. After an extensive review of the history

of habeas corpus, the Court concluded that “the jurisdic-

tion of federal courts on habeas corpus is not affected by

procedural defaults ... during the state court proceedings,”

with the caveat that “the federal habeas judge may in his

discretion deny relief to an applicant who has deliberately

gee the orderly procedure of the state courts.” Jd. at

Sanders involved a federal prisoner who had filed a

second motion under 28 U.S.C. § 2255. The first petition

had stated bare conclusions unsupported by facts and was

dismissed. The case was arguably different from Fay in that

it involved a federal prisoner, rather than state, and the

default in question was failure to raise the point on the first

collateral attack, rather than failure to object at trial or on

direct appeal. See Sanders, 373 U.S. at 5-6.

is

The Sanders court identified two different “abuse of the

writ” problems. One situation, the one involved in the case,

involves an attempt to relitigate an issue contained in the

previous petition, though perhaps not resolved on the

merits. 373 U.S. at 15-17. The second situation involves

the new claim. The Court decided not to “deal at length”

with this issue and simply stated that Fay v. Noia and a com-

panion case, Townsend v. Sain, 372 U.S. 293 (1963) “deal

at length with the circumstances under which a prisoner

may be foreclosed from federal collateral relief. The prin-

ciples developed in those decisions govern equally here.”

Sanders, 343 U.S. at 18.

Thus the Sanders Court itself disclaimed any difference

between presenting a new ground not raised in a previous

federal petition and presenting a ground procedurally

defaulted in the state system. Both situations balance the

same opposing interests, finality versus opportunity to have

the claim heard, and both are to be governed by the same

standard.

Subsequent development in the law of state procedural

defaults has caused the holding of Sanders to become am-

biguous. Sanders can be read to hold that “deliberate

bypass” is the standard, or it can be read to hold that the

standard is the same as for state procestural defaults. The

two are no longer the same.

2. The Cause and Prejudice Test.

Ten years after Fay and Sanders, the deliberate bypass

standard set in those cases began to decline. In Davis v.

United States, 411 U.S. 233 (1973), a § 2255 petitioner chal-

lenged as racially discriminatory the composition of the

grand jury which had indicted him. Davis had not chal-

Ai

lenged the grand jury by pretrial motion, as required by

Federal Rule of Criminal Procedure 12 (b)(2). The Court

held that the rule was an express waiver provision enacted

by Congress and therefore could not be defeated by per-

mitting the waived claim to be raised on collateral attack.

411 US. at 242.

Davis emphasized the importance of raising the objec-

tion before trial in order to allow the trial judge to make

the correction, if necessary. If the defendant makes a time-

ly challenge, “inquiry into an alleged defect may be con-

cluded and, if necessary, cured before the court, the

witnesses, and the parties have gone to the burden and ex-

pense of a trial.” 411 U.S. at 241.

In Francis v. Henderson, 425 U.S. 536 (1976), the Court

was presented with a state prisoner seeking habeas in cir-

cumstances otherwise identical to Davis. The practical in-

terests involved were the same. Prompt raising of the

objection would have allowed prompt correction. The

governmental interests, though, were quite different. The

State procedural rule, unlike the federal rules, did not

emanate from the same authority that had enacted the

habeas statutes. On the other hand, a federal writ of habeas

corpus for a state prisoner involves considerations of

federal/state comity not involved in a § 2255 proceeding.

Notwithstanding these differences, Francis adopted the

Davis cause and prejudice test. Jd. at 542. Although the

Francis majority did not explicitly overrule Fay, despite a

challenge from the dissent to state its position explicitly, id.

at 546-47 (Brennan, J., dissenting), the result is clearly in-

consistent with Fay’s deliberate bypass standard.

; The cause and prejudice test was extended beyond grand

jury challenges in Wainwright v. Sykes, 433 U.S. 72 (1977).

-10-

Petitioner had not objected at trial to the admission of a

statement taken without Miranda warnings and had not

raised the issue on appeal. Florida rules required the sup-

pression motion to be made before trial in most cases. /d.

at 76, n. 5. Sykes followed Francis and applied the cause

and prejudice test to failure to object to a confession at trial.

Unlike Francis, the Sykes court made its rejection of Fay

explicit. /d. at 87-88, n. 12.

The Sykes court repeated the same practical considera-

tions stated in Francis and Davis. A contemporaneous ob-

jection at trial is needed to identify, determine, and if

necessary correct the problem and then proceed with the

trial. /d. at 88-89. The Sykes court was also concerned with

the possibility of “sandbagging.” An objection might be

withheld for the purpose of getting two bites at the apple.

A defendant might be acquitted, or receive a light sentence,

at the first trial. If not, and if reversible error is introduced

and the conviction vacated years later, defendant will get a

second trial on stale evidence. /d. at 89. A contem-

poraneous objection rule thus requires the defense to con-

centrate its energies on insuring that the first trial is free of

error, not the opposite. /d. at 90.

In addition to the above considerations, the Sykes court

discussed the idea that a procedural default is an inde-

pendent state ground for the decision. A state may con-

Stitutionally require that an objection be raised at a certain

point or waived, the argument goes, and thus the affir-

mance of the conviction rests on the adequate state ground

of waiver, not the federal ground of the lack of merit of the

objection itself. /d. at 81-82. If independent state grounds

were really the basis of Sykes, though, the cause and

prejudice test would not apply. The lack of a federal ques-

tion is jurisdictional, not discretionary. See Herb v. Pit-

~

cairn, 324 U.S. 117, 125-26 (1945). If the state ground were,

by itself, sufficient to support the judgment, federal courts

would have no power to interfere, cause or no cause,

prejudice or no prejudice. Because Francis and Sykes lay

down a rule governing the judicious use of power rather

than the limitations of power, see Francis, 425 U.S. at 538-

39, the ground cannot be a jurisdictional one.

The cause and prejudice test was extended to a case in-

volving neither federalism nor Rule 12(b) in United States

v. Frady, 456 U.S. 152 (1982). Frady had been convicted of

murder in the United States District Court for the District

of Columbia.” Frady brought a § 2255 motion, claiming for

the first time that the jury instructions had incorrectly

defined “malice,” id. at 157-58, n. 6, citing two cases decided

four and seven years, respectively, after his trial, ibid.

The Court of Appeal held that the error had to be con-

sidered on a § 2255 motion if it met the “plain error” stand-

ard of Federal Rule of Criminal Procedure 52(b), the

standard applied on appeal for most errors not objected to

at trial. This Court reversed.

The Davis holding that rules on habeas could be no more

lenient then those on appeal did not imply that they could

be no more stringent. 456 U.S. at 164. While the Davis

court had decided that the rules for preserving an objection

for appeal established a floor for considering the issue on

habeas, the Frady court rejected the contention that the ap-

2 __‘ The trial predated the establishment of a separate local court

system for the District. /d. at 160.

2.

pellate rules could establish a ceiling. Respect for finality

of judgments permits the judicial creation of a standard for

habeas higher than the one created for appeal by the rules.

The cause and prejudice standard of Davis, Francis, and

Sykes was held to be the proper balance between society's

interest in finality and the petitioner’s interest in belatedly

asserting his claim. 456 U.S. at 166-67.

3. Defaults After Trial.

Ali of the cases from Davis to Frady had involved failure

io object at trial. The primary open question remaining was

whether the cause and prejudice standard also 2pplied in

the event of failure to raise an issue on appea!. This issue

was addressed in Reed v. Ross, 468 U.S. 1 (1984). Ross had

failed to object to a burden-shifting jury instruction at trial,

but the state had no contemporaneous objection rule at the

time. /d. at 7, n. 4. He also failed to raise the issue on ap-

peal. The Court saw no reason to apply a different stand-

ard on that basis.

This type of rule [requiring legal issues to be

raised on appeal or waived] promotes not only the

accuracy and efficiency of judicial decisions, but

also the finality of those decisions, by forcing the

defendant to litigate all of his claims together, as

quickly after trial as the docket will allow, and

while the attention of the appellate court is

focused on his case. To the extent that federal

courts exercise their § 2254 power to review con-

stitutional claims that were not properly raised

before the state court, these legitimate state inter-

ests may be frustrated: evidence may no longer

be available to evaluate the defendant’s constitu-

tional claira if it is brought to federal court long

-13-

after his trial: and it may be too late to retry the

defendant effectively if he prevails in his col-

lateral challenge.

Id. at 10.

If any doubt remained that the same test applied for both

trial and appellate defaults, it was eliminated in Murray v.

Carrier, 477 U.S. 478, 490-92 (1986).

4. Successive Federal Petitions.

Looking at the cause and prejudice cases as a group, as

charted in Figure 1, we see that only one common thread

runs through all of them. In each case, the interest of the

petitioner in having his claim heard must be balanced

against the interest of the state in having the issue raised at

Figure 1

“Cause & Prejudice” Cases

Reasons for Procedural Bar

Comity Federal State Need for Finality

Rule Rule Trial Obj.

Davis . . e

Francis . € e *

Sykes « . e °

Frady e .

Ross e e .

Carrier e “ °

whe

the earliest possible stage of the proceedings. While ex-

plicit federal and state rules are involved in most of the

cases, only one case, Davis, actually involves a rule with a

“cause” exception and none involve rules with an explicit

“prejudice” requirement to invoke the exception. Frady

does not involve any explicit procedural rule at all. The

cause and prejudice standard is not based on a respect for

procedural rules as such but on a recognition of the needs

underlying these rules, a respect for the finality of judg-

ments, and a belief that there must, at some point, be an

end to litigation.

The interests to be balanced were neatly summed up in

Reed v. Ross. “On the one hand, there is Congress’ ex-

pressed interest in providing a federal forum for the vin-

dication of constitutional rights of state prisoners.... On

the other hand, there is the State’s interest in the integrity

of its rules and proceedings and the finality of its judg-

ments.” Reed, 468 U.S. at 10. To determine whether the

balance results in the same cause and prejudice test in the

present case, we must examine both sides of this equation.

In one sense, the state’s interest in enforcing procedural

defaults grows weaker as the time after trial increases.

There is a great deal of difference between avoiding retrial

altogether, as objection at trial may do, and merely hasten-

ing the retrial, as an objection on appeal or on the first

habeas petition may do. In another sense, though, the in-

terest in finality increases with time. Society, the victim or

next-of-kin, and arguably even the defendant need to have

a final answer at some point. See Mackey v. United States,

401 U.S. 667, 690-91 (1971) (Harlan, J., dissenting). With

each additional procedure that is permitted, that final day

when all can say “it’s over” is further postponed. We must,

of course, accept direct appeal as a necessary delay and ex-

~ -

pense to guard against conviction of the innocent. Then

there is state collateral attack. Then there is federal

habeas. The frustration builds as attack after attack raises

anew the possibility that a guilty person may escape justice

and as the probability that the defendant is in fact innocent

shrinks far below reasonable doubt into the infinitesimal.

Meanwhile the evidence for retrial grows more and more

stale. Memories fade; witnesses die or disappear; physical

evidence deteriorates or is lost. The ability to conduct a

trial which is fair to society and to the victim, as well as to

the defendant, decays with time. New trials are ordered on

the theory, or at least the hope, that the second trial will

determine the truth more reliably than the first. As time

marches on that hope becomes a pipe dream.

The state’s interest in having claims which were omitted

from the first petition barred from consideration on sub-

sequent petitions may be less than its interest in a contem-

poraneous objection rule in some respects, but it is greater

in others. If all claims must be made in the first petition,

absent cause and prejudice, most cases will have a definable

end — the final disposition of the first federal petition.

That is an important interest indeed. It is especially impor-

tant in capital cases, where the execution of the sentence

cannot begin until the end of proceedings is reached. See

Barefoot v. Estelle, 463 U.S. 880, 888 (1983).

On the other side of the coin is the petitioner’s interest

in a federal forum for his federal claim. This interest is far

less compelling on successive petitions. Even if we assume

the deep suspicion of state courts underlying this interest

to be valid, it is one thing to say that the petitioner must be

allowed entrance to the federal courthouse and quite

another to insist that he has a right to take up residence

«th.

there. The cause and prejudice test merely requires the

petitioner to show that he has a very good reason for not

raising his claim earlier, see, e.g., Amadeo v. Zant, 56

U.S.L.W. 4460 (May 31, 1988) (evidence of intentional

racism in jury selection concealed by the prosecution), and

that the claim involves an error which really made a dif-

ference. Finally, there is the safety valve recognized in

Murray v. Carrier, 477 U.S. at 496 for the “extraordinary

case, where a constitutional violation has probably resulted

in the conviction of one who is actually innocent.”

The balance between finality and the federal forum thus

tips at least as far in the government’s favor in this case as

it did in Frady, Reed, or Carrier, and the cause and prejudice

standard is the appropriate one to apply.

5. Statutory Freezing.

The argument might be made that Rule 9(b) of the Rules

Governing Section 2254 Cases in the United States District

Courts has frozen the Sanders “deliberate bypass” test into

place and precluded further development of the case law.

Such a drastic change in role of the Court in defining the

scope of habeas corpus would probably be within the power

of Congress, but it should not be inferred without compell-

ing evidence.

Rule 9(b) as originally promulgated by this Court

provided for dismissal of successive petitions alleging new

grounds if the failure to assert them earlier “is not ex-

cusable.” See 28 U.S.C.A. § 2254, Rule 9 at 1136 (1977).

Congress changed this language to “constituted an abuse

of the writ.” 90 Stat. 1334, 1335 (1976). The committee

report stated the “not excusable” language gave too broad

a discretion to the judge. H.R. Rep. No. 94-1471, reprinted

_———

= 2

in 1976 U.S. Code Cong. & Admin. News 2478, 2482. The

committee quoted Sanders and stated that the change

brought the rule into conformity with the law. /bid.

The inference is fairly drawn that Congress intended that

the rules themselves not make any change in the law as

developed in the cases. It does not follow, however, that

Congress intended to preclude further case law develop-

ment.

The language of Sanders and Fay was not written into the

rule. Instead, the spacious and elastic phrase “abuse cf the

writ” was used. This phrase is far too vague and general to

imply an intent to freeze the case law in place at the point

where it happened to be at the time the rules were promul-

gated. The generality of the phrase is more consistent with

an intent to allow the case law to deve!op unimpeded. That

development points inexorably toward the adoption of the

cause and prejudice test for all procedural defaults.

C. Only genuinely new rules are sufficiently novel to

qualify under Engle/Reed.

Once the cause and prejudice test is determined to apply,

we must turn to the question of whether cause exists. The

clearest example of cause is intentional concealment of the

factual basis of the claim by the prosecution. See Amadeo

v. Zant, 56 U.S.L.W. 4460 (May 31, 1988). When the pur-

ported cause is a purported change in the law, the question

becomes more difficult.

The issue of novelty of the argument as “cause” is brack-

eted by the decisions of this Court in Engle v. Isaac, 456 U.S.

107 (1982) and Reed v. Ross, 468 U.S. 1 (1984). Both cases

involved claims that jury instructions had unconstitutional-

«ti.

ly shifted the burden of proof of an element of the offense

to the defendant. In Engle, the defendants claimed that

lack of self-defense was an element of the crimes as defined

by Ohio law and that once they showed evidence of self-

defense the prosecution must prove its absence beyond a

reasonable doubt. The trials had occurred several years

after In re Winship, 397 U.S. 358 (1970). In the years be-

tween Winship and the trials in question, many defendants

had relied on Winship to challenge instructions placing the

burden of proof of particular issues on them. Engle, 456

US. at 131-33. The Court rejected the idea that failure to

raise the claim had to sink to the level of ineffective assis-

tance before it could be barred by the Sykes test. A claim

need not be one that “every astute counsel” would have

made before cause is found lacking. If a defendant does

not lack the tools to construct the constitutional claim,

novelty of the argument will not constitute cause for failure

to comply with the state procedural rule. Id. at 133.

In Reed v. Ross, the jury in a murder case was instructed

that use of a gun raises a presumption of malice shifting the

burden of proof to the defendant. 468 U.S. at 6-7. The ar-

gument against this instruction would seem on its face to

be considerably less novel than the argument advanced in

Engle. Malice is traditionally an element of murder to be

proved by the prosecution, while self-defense is tradition-

ally an affirmative defense which many jurisdictions have

required the defendant to prove. See W. La Fave and A.

Scott, Criminal Law 45, n. 13, 48-49, n. 24, 528 ( 1972). The

Reed court distinguished Engle by the fact that the trial in

Reed had occurred before Winship. 468 U.S. at 19-20.

Novelty will constitute cause “where a constitutional!

claim is so novel that its legal basis is not reasonably avail-

able to counsel.” Reed, 468 U.S. at 16. The most common

-19-

instance of a claim without a pre-existing “reasonable

basis” is where “this Court has articulated a constitutional

principle that had not been previously recognized but which

is held to have retroactive application.” Id. at 17 (italics

added). Reed then equates “not previously recognized”

with the “clear break with the past” test. Ibid. This “clear

break” language is taken from United States v. Johnson, 45 7

U.S. 537 (1982), where the Court indicated that “clear

break” cases are “decisions whose nonretroactivity is effec-

tively preordained.” Id. at 553-54. The Reed court found

that the pre-Winship authority was sufficiently sparse and

that the practice of which Ross complained was sufficient-

ly entrenched that the claim feli into one of Johnson’s three

“clear break” categories. Therefore defense counsel had

no reasonable basis to raise it at trial. 468 U.S. at 18-19.

The threads of retroactivity are woven throughout the

fabric of Reed v. Ross. They show clearly in all three

opinions. Justice Harlan had noted the connection fifteen

years earlier, when he pointed out that retroactivity on

habeas was not an issue until Fay v. Noia, 372 U.S. 391

(1963). Desist v. United States, 394 U.S. 244, 261 (1969)

(Harlan, J., dissenting). The Xeed majority noted that

retroactivity was a distinguishing characteristic of the

primary category of cases to which its rule applied. 468 U.S.

at 17. The majority also lifted its “clear break” test direct-

ly out of retroactivity law. Ibid. Justice Powell rested his

deciding vote on the state’s own procedural default in not

raising the retroactivity issue. /d. at 20.

The dissent noted the paradoxical result. “But this

equating of novelty with cause pushes the Court into a co-

nundrum which it refuses to recognize. The more ‘novel’ a

claimed constitutional right, the more unlikely a violation

-20 -

of that claimed right undercuts the fundamental fairness of

the trial.” Jd. at 21-22 (Rehnquist, J., dissenting).

The correction to the anomaly and the solution to the co-

nundrum, we submit, is to always consider retroactivity

with any Reed claim. Now that Griffith v. Kentucky, _ US.

93 L.Ed.2d 649, 107 S.Ct. 708 (1987) has clearly

separated retroactivity analysis on habeas from that on

direct review, the Reed test must be deemed to reter to

genuinely new constitutional principles which are retroac-

tive on habeas corpus. Such new principles, we submit, are

virtually nonexistent. See Reed, 468 U.S. at 26, n. 3

(Rehnquist, J., dissenting).

D. This Court has adopted two different methods for

determining retroactivity of new rules.

The essence of a habeas petitioner’s Reed claim is that

the law has changed in an unexpected way and that he

should not be “punished” for a lack of clairvoyance. But

are the people of a state not entitled to make the same

claim? The people’s side of the unexpected change ledger

is the issue of retroactivity.

In the present case, unlike Reed, the relation between

retroactivity and cause for default is squarely before the

Court. Cf. Reed, 468 U.S. at 20 (Powell, J., concurring).

The relation was expressly considered by the court below

and was discussed in the majority opinion and in one of the

dissents. Moore v. Kemp, 824 F.2d 847, 853, n. 12 (11th Cir.

1987); id. at 870, n. 28 (Tjoflat, J. dissenting).

He

1. The rise of nonretroactivity: Linkletter-Stovall.

Under an earlier philosophy of jurisprudence, “retroac-

tivity” was not an issue. Courts did not make law, it was

thought, but only announced what had always been the law.

1 Blackstone, supra p. 3, at 69-70. Unconstitutional statutes

were not “invalidated” by the decisions, they had never

been true “statutes” at all. Norton v. Shelby County, 118

U.S. 425, 442 (1886).

Along with judicial activism and the quasi-legislative

promulgation of detailed rules of criminal procedure came

the realization that full retroactivity was not constitutional-

ly required. A series of cases in the mid-1960’s established

a three-part test for retroactivity: (a) the purpose of the

rule; (b) the extent of reliance on previous practice; and (c)

the effect on the system of justice of full retroactivity.

Linkletter v. Walker, 381 U.S. 618, 636 (1965); Johnson v.

New Jersey, 384 U.S. 719, 727 (1966); Stovall v. Denno, 388

U.S. 293, 297 (1967). The central concern of this approach

seems to be whether retroactivity is needed to reverse the

convictions of innocent people. If a rule has a powerful

connection with the reliability of the truth-finding process

and substantial numbers of innocent people have suffered

false imprisonment, the reliance factor is swept away and

the impact on the system must be borne as the cost of

progress. Gideon v. Wainwright, 372 U.S. 335 (1963) (right

to counsel established on collateral review); Johnson, at 384

U.S. at 727-28. Conversely, if the rule would exclude

evidence in spite of its reliability in order to enforce a col-

lateral policy, the social cost of full retroactivity may be

prohibitive. Linkletter, 381 U.S. at 637-38. (Mapp ex-

clusionary rule not retroactive on collateral review). In this

practical cost-benefit analysis the status of review as direct

or collateral had little weight. Stovall, 388 U.S. at 300-301.

-2-

2. The Harlan approach.

By the end of the decade, opposition had begun to form.

In Desist v. United States, 394 U.S. 244 (1969), Justice Har-

lan took his stand that retroactivity must be rethought. /d.

at 258 (Harlan, J., dissenting). Instead of focusing on the

purpose of the rule and weighing the costs and benefits of

retroactivity, Justice Harlan focused instead on the nature

of the judicial process.

The first principle of jurisprudence is that courts decide

cases according to the law. The most flagrant violation of

this principle is the purely prospective “decision,” one that

is announced by the court but not applied to the parties

before it. Because the power to announce constitutional

rules flows solely from the duty to decide cases, Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 177 (1803), such “pure”

prospectivity is itself of doubtful constitutionality.

A more difficult question arises at the next step of the

retroactivity ladder. Ernesto Miranda’s conviction was

reversed and his confession suppressed. Miranda v.

Arizona, 384 U.S. 436, 491-92 (1966). Woodrow Whisman,

whose similar case was on direct review at the same time,

was denied the benefit of the Miranda rule. Whisman v.

Georgia, 384 U.S. 895 (1966) (Douglas, J., dissenting); see

Johnson, 384 U.S. at 734. How could the Georgia court be

correct and the Arizona court in error when they reached

-%-

the same result under the same circumstances? It may well

be socially efficient to so hold. The reversal of Miranda’s

conviction had little or nothing to do with the justice of his

case, but it was a necessary cost of insuring that arrestees

would be made aware of their rights in the future. But is

the difference in the treatment of Miranda and Whisman

consistent with the Anglo-American system of law built on

precedent? Justice Harlan thought not. Desist, 394 U.S. at

258-59: accord Hankerson v. North Carolina, 432 U.S. 233,

246-48 (1977) (Powell, J., concurring). If a legislature

wishes to treat similarly situated people differently, it must

at least have a rational basis for doing so. L. Tribe,

American Constitutional Law § 16.2 (2d ed. 1988). How can

this Court simply conduct a lottery?

The final step is the application of the Harlan theory to

collateral review. If one accepts the analysis to this point,

including the premise that the nature of the judicial process

outweighs cost-benefit analysis, there are two principled

answers. One could conclude that new rules must be ap-

plied on habeas as well, either on the Blackstone theory that

law is discovered and not made, or on the theory that a

habeas petition is not significantly distinguished from a

direct appeal to apply a different rule. On the other hand,

one could conclude both that a habeas petition is fun-

aamentally different from an appeal, Mackey v. United

States, 401 U.S. 667, 682 (1971) (Harlan, J. concurring and

dissenting), and that the announcement of a truly new rule

3 The woman Miranda had raped had identified him before the

now-famous interrogation. Miranda, 384 U.S. at 491. The

justice of the outcome doubtless escaped her comprehension.

~~

is an actual change in the law and not just a discovery. With

the exception of rules which redress violations of rights

“implicit in the concept of ordered liberty,” id. at 693, new

procedural rules should not be applied retroactively on

habeas in the Harlan view.

E. If Estelle v. Smith is retroactive, a claim under it is

necessarily not sufficiently novel to qualify under

Engle/Reed.

In another case, Dugger v. Adams, 87-121, amicus has

urged the Court to accept the Harlan view of retroactivity

on habeas corpus as well as on direct review. That bridge

need not be crossed in the present case, however, as both

paths of retroactivity analysis lead to the same place.

Under either view of retroactivity, the claim that Estelle v.

Smith applies to this habeas petition is fundamentally in-

consistent with the claim that respondent had cause for

omitting it from his first petition.

]. Analysis Under Linkletter-Stovall

The Linkletter-Stovall analysis is still the method used by

the Court for habeas cases to date. See Allen v. Hardy, 478

U.S. 255 (1986) (per curiam) (applying Linkletter-Stovall to

Batson v. Kentucky, 476 U.S. 79 (1986)).

The first question normally addressed under the tradi-

tional approach is whether the rule in question is really a

“new” rule at all or merely an application of an existing rule

to different facts. Because respondent cannot have a

“novelty” claim unless the rule is new, we will defer this

question to the end of the discussion.

|

:

'

-25-

Assuming the rule to be new, retroactivity depends on

the three Stovall factors. See p. 21, supra. Examining the

purpose of the Estelle v. Smith rule, we travel a well-worn

path. The purpose of rules protecting the right to counsel

during interrogation and protecting the privilege against

self-incrimination is one of the most thoroughly discussed

areas of retroactivity law. While there is some tangential

relation between these rules and the reliability of the fact-

finding process, the “purpose” prong of this test is invariab-

ly resolved against retroactivity. See Tehan v. Shott, 382

U.S. 406, 414-16 (1966) (comment on failure to testify);

Johnson v. New Jersey, 384 U.S. 719, 729-30 (1966) (Miran-

da and Escobedo); Stovall v. Denno, 388 U.S. at 297-99

(1967) (counsel at identification); Solem v. Stumes, 465 U.S.

638, 643-645 (1984) (requirement that suspect initiate any

conversation after invocation of Miranda rights).

The second and third Stovall factors are significant only

when the “purpose” question is not clearly resolved one

way or the other. Desist v. United States, 394 U.S. 244, 251-

252 (1969). The long line of authorities from Tehan to

Solem would seem to reselve the question beyond doubt,

but even if they do not, the effect on the system of justice

weighs heavily against retroactivity. It is apparent from this

Court’s own cases that the practice of psychiatric interviews

without counsel has been extensive. See Estelle v. Smith,

451 U.S. 454 (1981); Satterwhite v. Texas, 56 U.S.L.W. 4470

(May 31, 1988); see also Battie v. Estelle, 655 F.2d 692 (Sth

Cir. 1981).

The second Stovall factor looks “primarily to whether law

enforcement authorities and state courts have justifiably

relied on a prior rule of law said to be different from that

announced by the decision whose retroactivity is in issue.”

Solem, 465 U.S. at 645-46. “At just what point of predict-

-%-

ability local authorities should be expected to anticipate a fu-

ture decision has been unclear, however.” Id. at 646 (italics

added). The second factor is thus closely connected with

the question of whether the rule is really new at all.

With the purpose and impact factors weighing heavily

against retroactivity, a habeas petitioner seeking to apply

Estelle v. Smith must establish either (a) that Smith is not a

new rule at all, so that retroactivity analysis does not apply;

or (b) that Smith was sufficiently predictable that local

authorities and state courts should have anticipated it,

making reliance on any prior practice unjustified. In a suc-

cessive habeas petition, however, either of the above argu-

ments collides head on with the contention that the novelty

of the argument justifies its omission from the prior habeas

petition. A decision is eligible for nonretroactivity if it es-

tablishes “a new principle of law, either by overruling clear

past precedent on which litigants may have relied... or by

deciding issue of first impression whose resolution was not

clearly foreshadowed.” Chevron Oil Co. v. Huson, 404 U.S.

97, 107 (1971) (citation omitted).

Estelle v. Smith did not overrule any clear past prece-

dents. It established a new principle of law, therefore, only

if it was a case of first impression whose resolution was not

clearly foreshadowed.

The predecessor of the court below* examined the

retroactivity of Estelle v. Smith in Battie v. Estelle, 655 F.2d

4 That is, the Fifth Circuit before its division into the present Fifth

and Eleventh Circuits.

7.

692, 696-99 (Sth Cir. 1987). In deciding that Smith did not

establish a new principle of law, the Fifth Circuit noted the

Smith court’s reliance on Jn re Gault, 387 U.S. 1 (1967), a

case decided eleven years before respondent’s first federal

petition. The Smith holding is squarely premised on Gault,

quoting the statement “the availability of the [Fifth

Amendment] privilege does not turn upon the type of

proceeding in which it is invoked, but upon the nature of the

statement or admission and the exposure which it invites.”

Smith, 451 U.S. at 462 (italics added). A better example of

clear foreshadowing can scarcely be imagined.

The Fifth Circuit was entirely correct in Battie that Smith

was fully retroactive because it did not establish a new prin-

ciple of law. Smith was clearly foreshadowed by Gault and

by Gardner v. Florida, 430 U.S. 349, 358 (1977) (plurality

opinion). This very same foreshadowing conclusively es-

tablishes that Moore’s counsel did have the tools to con-

struct his Smith claim at the time of the first petition. |

The majority of the court below appears to have taken

the position that Moore is excused from not raising the

issue in his first petition merely because the claim was not

a certain winner at the time, citing such factors of uncer-

tainty as the plurality status of the Gardner opinion, Moore

v. Kemp, 824 F.2d 847, 852 (11th Cir. 1987), and the dif-

ferences between Georgia and Texas sentencing proce-

dures, Moore, 824 F.2d at 853-54. This Court has made it

clear, however, that counsel’s opinion that a claim has lit-

tle chance for success does not constitute cause for a

default. Smith v. Murray, 477 U.S. 527 (1986). The ques-

tion is whether counsel has the tools to construct the claim.

Gault plus Gardner were more than sufficient tools for

Moore’s counsel to construct an Estelle v. Smith claim in

- 28 -

November of 1978. Battie’s counsel had done so three

months earlier. Battie v. Estelle, 655 F.2d at 696.

2. Analysis Under the Harlan-Powell Approach.

Under the Harlan-Powell approach, the analysis is con-

siderably simpler. Petitions for writs of habeas corpus

should be judged “according to the law in effect when [the]

conviction became final.” Macney v. United States, 401 USS.

667, 692 (1971) (Harlan, J. concurring and dissenting). Ex-

ceptions are made only for decisions which preclude

punishment for the conduct in question altogether, id. at

692, and “for claims of nonobservance of those procedures

that ... ‘are implicit in the concept of ordered liberty,’ ” id.

at 693, quoting Palko v. Connecticut, 302 U.S. 319, 325

(1937).

Neither of the exceptions applies here. Murder is still a

crime, and death is still a valid punishment. The proce-

dures of which respondent complains cannot be said to be

so fundamentally unfair that the Estelle v. Smith rule is eS-

sential to the substance of fair hearing. The law to be ap-

plied to this petition, then, is the law in effect when this

court denied certiorari in 1976. See Moore v. Georgia, 428

US. 910.

Can it seriously be contended that the Estelle v. Smith

claim was not reasonably available to counsel in 1978 while

at the same time contending that the conviction was revers-

ible on that basis in 1976? No. The two propositions are

logically contrary, ie. one or the other or both must be

false.

Respondent cai.ot possibly be entitled to a writ of

habeas corpus. In the process of showing that Estelle v.

a

- 29 -

Smith is retroactive he must necessarily negate cause for his

own default.

F. There has been no fundamental miscarriage

of justice.

This Court has previously noted that there may be a “fun-

damental miscarriage of justice” exception to Sykes. Engle,

456 U.S. at 135. For guilt phase error, this means actual in-

nocence. Murray v. Carrier, 477 U.S. 478, 496 (1986). This

concept does not easily translate to the penalty phase. In

one case, the test applied was whether the error “serve[d]

to pervert the jury’s deliberations.” Smith v. Murray, 477

U.S. 527, 538 (1986). Respondent’s claim here is virtually

identical to Smith’s. Both cases involved un-Mirandized in-

terviews with court-appointed psychiatrists. No reason ap-

pears for a different conclusion.

Conclusioa

The decision of the Eleventh Circuit should be reversed

and the petition for writ of habeas corpus denied.

Dated: June, 1988

Respectfully submitted,

Kent S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation